CHEDA J: This is an
application for a joinder of second respondent.
Applicant and first respondent were
married to each other according to the laws of Zimbabwe in October 1992. The marriage was blessed with two children
and during the subsistence of the marriage the parties acquired a sizeable
number of assets.
The
parties' marriage encountered some problems which resulted in their separation. Applicant left the matrimonial home in September
2001. On the 30 November 2007, first respondent
registered a Notarial Deed of Trust under Matabezi Vuka Uzenzele Trust to which
he is the settler and all the assets were donated to the Trust. Applicant issued summons on the 7th
May 2008. After issuing summons she then
discovered that the matrimonial assets had been donated to the second
respondent. The effect of this is that,
left as it is, the assets do not form part of the matrimonial property.
It
is for this reason that this application was filed.
Applicant's
argument is that in the absence of second respondent being joined as a part
under case no. HC 997/08 she will be prejudiced as first respondent has by transferring
the property to second respondent intended to defeat her claim. This is the long and short of her argument.
On
the other hand first respondent argues that it would be unprocedural for second
respondent to be joined as a party to the main action as this is a matrimonial
matter. Advocate
Moyo has urged the court to adopt a robust approach in this matter. In support of that assertion reference was
made to Order 13 Rule 87(2)(b) of the High Court Rules which reads:-
“(2) at any stage of the proceedings in any
cause or matter the court may on such terms as it thinks just and either of its
own motion or on application_.
(a)
----
(b) order any person who ought to have been
joined as a party or whose presence before the court is necessary to ensure
that all matters in dispute in the cause or matter may be effectually and
completely determined and adjudicated upon, to be added as a party”
This
rule is all encompassing and covers all matters. The rationale behind it is to ensure that the
court is better placed to deal with issues at hand. The court is so placed, if all the facts are
before it. In Marais and another v Pongola
Sugar Milling Company and Other 1961(2) SA 698, a two tier approach was
formulated in the determination of a joinder and is thus:-
“(1). that a party must have a direct and
substantial interest in the issues raised in the proceedings before the court;
and that,
(2) his rights may be affected by the
judgment of the court.”
The court went
further and stated that, once applicant has established the above then it can
proceed to determine the matter of joinder in accordance with requirements of convenience
and common sense. This is the legal
position. The same principle was adopted
in Lewis NO v Schoeman NO and others
1951(4) SA 133.
What the court should consider is the effect
of the joinder to both parties. In a
case where liability is in dispute, a joinder should be ordered as long as
there is no prejudice to be suffered by respondent. In any event in the event that respondent
unduly suffers prejudice, respondent's remedy will lie in costs against
plaintiff. In Ettling V Schiff (5, S.C. 131) quoted with approval in Lewis N.O v Schoeman N.O and Others (supra)
and in Sieff v Wilhemina and Others,
1911 OPD 24, DE VILLIES CJ stated:-
“In case of this
sort (misjoinder) it seems to me that the court in which the trial takes place
is the best judge of what would be convenient in the cause of its practice”
Mr Ndove for first and second
respondent's argument was that applicant should have sought and obtained an
amendment to her summons first before she argues about joinder. He went into great lengths about this issue. However, the main issue at hand is of the
joinder and not the amendment. The issue
of amendment is basically procedural which can be dealt with at anytime and in
any event it is not the crucial issue at all.
With regards to the question as to whether second respondent should be joined
or not he was unable to cite any authorities in first respondents' favour.
The question which
falls for determination in my view still remains as to whether or not second
respondent should be joined in these proceedings.
Applicant
has been married to first respondent for 15 years. It is her evidence that when she married him
he was not possessed of such wealth as he is now. First respondent is the only real beneficiary
as he has awarded himself together with the minor children awarded 80% and
awarded applicant 20% in the whole estate.
For this reason, without more, she has direct and substantial interest
in the issues raised in the proceedings and therefore her rights may be
affected by the judgment of this court.
It
is therefore, pertinent to enquire as to the consequences of a non-joinder. The prejudice is there for anyone to see,
there will be a lot of inconvenience not only to the applicant but to the court
as well. No doubt this will result in
applicant being oppressed and in an attempt to extricate herself therefrom,
there will be a multiplicity of actions, a situation which should be avoided if
possible, see Morgan and another v Salisbury Municipality 1933 AD 167.
Respondents'
argument, therefore, has no merit and is accordingly rejected.
In
the interest of justice it will only be proper that second respondent be joined
to the main action in order to enable all the issues to be ventilated in court. It will be convenient and makes common sense
to do so anyway.
The
application succeeds and the following order is made: -
1. The 2nd respondent be and is
hereby joined as the second defendant in the matrimonial action between applicant
and first respondent in Case No HC 997/08.
2. That the costs of this application be
borne by the respondents jointly and severally, the one paying, the other being
absolved.
Lazarus and Sarif,
applicant's legal practitioners
Marondedze, Mukuku,
Ndove and partners, 1st and 2nd respondents'
legal practitioners
